Wallace v. State

Murphy, C. J., delivered the opinion of the Court. Appellant was convicted at a court trial of robbing William Wildberger with a deadly weapon, assaulting a police oíñeer (Leonard Byrd), and carrying a deadly weapon openly with intent to injure Byrd. He was sentenced to twenty years on the robbery charge and to two concurrent terms of three years each on the assault and deadly weapon offenses, to run concurrently with the robbery sentence. He contends on this appeal that the trial judge erred “in ruling the extrajudicial identifications harmless.” The record discloses that Nelson R. Kandel, Esq. was appointed by the court to prosecute the appeal for the indigent appellant.

While Kandel’s name only appears as counsel for appellant on the brief submitted to this court, John Hackett, Esq. entered his appearance on appellant’s behalf and appeared before us to orally argue the merits of appellant’s case. The State objected to Hackett’s appearance on the ground that he had not been appointed by the court to represent appellant and, as appellant’s appointed counsel, Kandel was not present in court, the case would have to be submitted without oral argument on appellant’s behalf. In response to the State’s objection, ’ Hackett stated that his professional services had been engaged by Kandel to assist in the appeal; that he had subsequently consulted with appellant, advising him that he was assisting in the prosecution of the appeal; and that he, Hackett, consulted with Kandel in preparing the appeal brief, and did so under Kan del’s professional direction. We reserved our ruling on the State’s objection and permitted Hackett to argue the case for appellant. ¹³⁴ In English v. State, 8 Md. App. 330 , we observed that the constitutional right to counsel entitles an indigent accused to “such counsel as the court may assign”; that “once counsel has been chosen, * * *, the accused is entitled to the assistance of that counsel”; and that unless he waives such right the accused should not be required to be heard through counsel other than the one appointed by the court to represent him, “no matter how competent, experienced and conversant with the case other counsel may be and regardless of the fact that in retrospect, the other counsel afforded him a genuine and effective representation.” That English involved court-appointed counsel at the trial level and not, as here, counsel appointed by the court to prosecute an appeal, does not mean that the principles enunciated in that case are not of similar application.

We think it clear that once appointed by the court to represent the accused on appeal, counsel has the total responsibility for the proper prosecution of the appeal; he cannot divest himself of his professional responsibilities by simply turning the case over to another lawyer and having no further connection with it. This does not mean that court-appointed counsel is prohibited from obtaining the assistance of another lawyer in preparing the appeal, or of authorizing the inclusion of that lawyer’s name on the brief submitted on the accused’s behalf, or, where court-appointed counsel personally appears to argue the appeal, to permit the lawyer assisting him to participate in the oral argument. But under the rationale of English , it must always be court-appointed counsel who personally superintends the preparation of the appeal and the advocacy of its merits. Where then, as here, court-appointed counsel does not personally appear to argue the appeal, we think it manifestly improper to permit another lawyer, not appointed by the court and whose name does not appear on the brief, to argue on the accused’s behalf.

I There was evidence adduced at the trial showing that ¹³⁵ on September 11, 1968 at 3:10 a.m. William Wildberger was held up at his gas station by a lone Negro gunman wearing gray pants and robbed of the station proceeds. Officer Leonard Byrd was about fifteen blocks from the scene of the crime when he received a report over his car radio that Wildberger’s gas station was being held up. As he approached the scene of the crime, Byrd received a radio description of the robber, including the fact that he was a Negro.

At a point near the gas station, Byrd heard dogs barking and drove his car into a lighted alley where he observed a man’s foot beneath a parked car. Upon investigating, Byrd saw a Negro male, later identified as appellant, beneath the car counting a large sum of money. Byrd ordered appellant from under the